The 11th Circuit sticks with its plain error approach

A safe trip to LA and a hotel net connection allowed me to find out that the Eleventh Circuit today in US v. Duncan, No. 03-15315 (11th Cir. Feb. 24, 2005) (available here), reiterated its hard-line plain error approach to Booker claims.  The bulk of the Duncan opinion just replays the court’s plain error analysis in Rodriguez (basics here, commentary here), but the kicker in Duncan is that the district court’s pre-Booker sentence incorporated so-called “acquitted conduct.”  The Eleventh Circuit says this does not change the analysis:

Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury verdict. Thus, nothing in Booker erodes our binding precedent.  Booker suggests that sentencing judges can continue to consider relevant acquitted conduct when applying the Guidelines in an advisory manner, “[f]or when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.”  Booker, 125 S. Ct. at 750.  Here, applying Justice Breyer’s opinion retroactively, we conclude that the jury verdict authorized life imprisonment.  Therefore, we conclude that it was not error for the sentencing judge to find a fact that had been acquitted by the jury when determining Duncan’s sentence.

The Duncan court also goes on to explan why it thinks the Eleventh Circuit has plain error right while the Fourth, Sixth, and Ninth Circuits have it wrong.  The Duncan court also rejects the defendant’s intriguing ex post/due process fair warning claims: “We readily conclude that Duncan had sufficient warning to satisfy the due process concerns articulated in Rogers v. Tennessee.”